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National Grain and Feed Association Oklahoma Grain and Feed Association Texas Grain and Feed Association Are You Prepared for a Visit From OSHA Seminar Update on Emerging and Evolving Regulatory Issues – OSHA . January 6, 2011 Oklahoma City, OK Jess McCluer
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January 6, 2011
Oklahoma City, OK
National Grain and Feed Association
On 12/24/09 OSHA issued a letter pertaining to sweep auger operations within grain bins: www.osha.gov (Interpretations)
Prohibits an employee from working inside a bin while an unguarded sweep auger is in operation
OSHA offered no acceptable procedures that would allow a person to work inside a bin when an unguarded auger is in operation
September 30, 1996 – Following the promulgation of the Grain Handling Standard’s technical amendment, OSHA issued an internal memorandum with an interpretation of 1910.272 (g) (1) (ii).
January 23, 2008 – Insurance representative sends letter to OSHA with questions about employees working in bins with operating equipment.
September 29, 2008 – OSHA issued a response letter titled, “Grain handlers and engulfment hazards; procedures for unguarded sweep augers.[1910.23(a)(5); 1910.272; 1910.272(e)(2); 1910.272(g)(1)(ii); 1910.272(g)(2)] , “ the Agency states “the standard (1910.272(g)(1)(ii)) is not intended to be prohibition against employees entering grain storage structures while machinery is running.” OSHA does not recognize 1996 memorandum.
October 15, 2008 – Insurance representative sends second letter to OSHA asking “Can an unguarded sweep auger be in operation (energized) in a grain bin while an employee is inside the bin?” Does not specifically identify what is meant by guarded or unguarded.
January 2009 – Industry is made aware of letter after it is posted on OSHA public Web page.
August 2009 – Representatives from NGFA and Grain Elevator and Processing Society meet with OSHA to discuss the sweep auger issue.
December 24, 2009 – OSHA issued a letter to insurance representative stating that it is a violation of 1910.272 (g) (1) (ii) unless the employer can eliminate all hazards presented by an energized unguarded sweep auger. (Yet to be posted on OSHA public Web page).
February 22, 2010 – NGFA submits letter to OSHA asking them to rescind December 24, 2009 letter and asks to schedule meeting to further discuss issue.
April 2010 – OSHA declines to meet with NGFA unless they identify specific parts of the December 24 the letter to discuss.
May 4, 2010 – NGFA submits letter to OSHA that points to several conflicts between OSHA’s statements in the Dec. 24th letter compared to its current standards. The NGFA also cited how previous correspondence between the agency and the NGFA regarding deenergization was not referenced in the Dec. 24 OSHA letter.
October 7, 2010 – Members of the NGFA Safety, Health and Environmental Quality Committee meet with senior OSHA staff to discuss the issues raised in the May 4 letter and to provide and economic analysis of the letter’s current and future impact on industry.
NGFA is waiting for response from OSHA, following meeting with senior leadership, and results of citation challenges to determine next legal and/or political actions.
Federal and State OSHA Inspections
Facts, Figures, Trends at Grain Elevators and Feed Mills
Most Commonly Cited Standards
*as of September 3, 2010
*as of September 3, 2010
Projected EOY - 167
Projected EOY 20
Country Grain Elevators [SIC 4221 – Farm Product Warehousing & Storage]
32 inspections, 101 citations, initial penalties of $137,300
Feed Manufacturing Industry [SIC 2048- Prepared Feed & Feed Ingredients – except Dog & Cat]
58 inspections, 217 citations, initial penalties of $385,207
Terminal Elevators [SIC 5153 - Grain and Field Bean Wholesalers]
77 inspections, 238 citations, initial penalties of $1,455,425
Totals, 167 inspections / 556 citations / $1,978,031
(Housekeeping 8, B/T/S 6)
National Emphasis Programs
Amputations and Fall Hazards
State Wide Programs
Arkansas, Colorado, Illinois, Kansas, Louisiana, Montana, North Dakota, Ohio, Oklahoma, South Dakota, Texas and Wisconsin
Area offices with emphasis programs
Kansas City, St. Louis, Omaha, Wichita
Indiana OSHA and Minnesota OSHA have state-run emphasis
The areas OSHA mentions in the REP are:
• Grain engulfment
• Auger entanglement
• Struck by
• Combustible Dust
OSHA states “All inspections under this REP must address all aspects of any potential grain handling work and include a review of all related written documentation (i.e., lock-out/tag-out program, forklift operation, grain entry program and procedures, housekeeping programs, fall protection program, personnel protective equipment, confined space entry, machine guarding, and safety related work practices).”
In September 2010, Deputy Assistant Secretary Richard Fairfax confirmed that OSHA is on track to exceed enforcement performance on a wide range of measures in FY 2010 as compared to prior years
OSHA has already performed 35,973 inspections (as of September 3, 2010), on target to exceed the 39,004 inspections conducted in FY 2009
OSHA has already issued 154 significant enforcement citations (more than $100,000 in penalties) and is on track to issue 167 significant enforcement citations for FY 2010
OSHA has already issued 18 egregious cases (instance-by-instance violations) and is projected to issue 20 before the end of FY 2010 (as compared to four egregious cases for FY 2009)
Section 5(a)(1) of the OSH Act states: “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
Currently used to cite employers for ergonomic injuries, combustible dust, and other OSHA-identified hazards for which the agency currently has no standards.
Citation issued in 2009 to retailer for Black Friday stampede that killed worker.
H1N1 Influenza Enforcement Procedure
Dr. Michaels has made clear his preference to expand the use of the General Duty Clause:
“OSHA has abandoned the General Duty Clause. It is time for the agency to start using it again.” Dr. Michaels, 2007
“OSHA doesn’t need a new standard if a hazard is serious and there are recognized measures to mitigate the hazard.” Dr. Michaels, 2007
"The General Duty Clause serves an important purpose because it is impossible for OSHA to create a standard for every hazard, as in the cases of ergonomics, workplace violence, specific chemical or bacterial exposure, or structural strength.“ Dr. Michaels at the September 2010 OSHRC Judicial Conference
Currently, to establish a repeat violation under section 17(a) of the OSH Act, OSHA must prove that:
The cited employer is the same one that was cited previously;
The previously cited employer was cited at least once before (and within three years of the time that the previous violation became a final order);
The earlier citation became a final order of the Occupational Safety and Health Review Commission; and
The earlier citation was for a substantially similar violation.
Repeat citations are very costly to employers—up to five times the penalty of the first-offense citation.
Three repeat citations (or Three Willful and repeat violations in combination) will place the employer in the Severe Violators Enforcement Program (SVEP).
Anticipate a broadening of OSHA’s willingness and ability to cite repeat violations:
Broadening the scope of what is defined as a “repeat” offense under section 17(a).
Citations for a single employer across multiple facilities may support “repeat” finding.
OSHA’s Enhanced Enforcement Program (EEP) was created to focus resources on “those employers who are indifferent to their obligations under the OSH Act.”
But in April 2009 congressional hearings, OSHA agreed that the EEP was not working as intended and needed to be improved to target “truly bad actors,” such as those with willful or repeat violations and/or those linked to workplace fatalities.
Severe Violators Enforcement Program (SVEP) designed by an OSHA Task Force to replace the EEP.
OSHA finalized the SVEP directive on April 22, 2010 and it went into effect on June 18, 2010.
OSHA will consider any inspection that meets one or more of the following criteria as a candidate for the SVEP:
Fatality/Catastrophic Criteria. A fatality/catastrophe inspection in which OSHA finds one or more willful or repeated citations or failure to abate notices based on a serious violation related to the death of an employee or three or more hospitalizations. Violations under this section do not need to be classified as “High Emphasis Hazards.”
Nonfatality/Noncatastrophic High Emphasis Hazards. An inspection that finds two or more willful or repeated violations or failure to abate notices based on high-gravity, serious violations due to a High Emphasis Hazard.
A “High Emphasis Hazard” is one based on a fall or a specific NEP identified in the draft, and thus includes (1) fall hazards under general industry, construction, shipyard, marine terminal, and longshoring standards; (2) amputation hazards; (3) combustible dust hazards; (4) crystalline silica hazards; (5) lead hazards (based on sampling); (6) excavation and trenching hazards; and (7) ship-breaking hazards.
Nonfatality/NonCatastrophic Hazards Due to the Potential Release of a Highly Hazardous Chemical –PSM. An inspection that finds three or more willful or repeated violations or failure to abate notices based on high-gravity, serious violations related to petroleum refinery hazards, i.e., hazards covered by the petroleum refinery PSM NEP and hazards associated with the potential release of highly hazardous chemicals, as defined by the PSM Covered Chemical Facilities NEP.
Egregious Violations. All “egregious” enforcement actions (cases where OSHA has alleged instance-by-instance violation of a particular standard) will be considered SVEP cases.
Enhanced, Broad Follow-up Inspections.
Follow-up inspections of the cited workplace will be conducted after the citation becomes a final order, even if abatement verification has been received.
In other words, these follow-up inspections are not limited in scope to whether the identified hazard has been abated, but will also include an assessment of whether the employer is engaging in similar violations.
For Construction Industry worksites that close before a follow-up investigation can be conducted, at least one of the employer’s other worksites will be inspected.
Where the agency has reason to believe that a citation is part of a broader pattern of noncompliance, OSHA will conduct inspections at related worksites of that employer. This means, for example, that a Pennsylvania facility that is cited for a particular violation can trigger an investigation of a Texas-based worksite of that same employer.
According to the SVEP, the scope of the related inspection “will depend upon the evidence gathered in the original SVEP inspection.”
Specifically, OSHA will be looking for evidence of broader noncompliance patterns in its initial investigations—and may issue document requests or subpoenas to gather evidence to determine whether related investigations are warranted.
OSHA also will identify potential locations to state plan states, and will accept referrals from state plan states.
When the regional administrator determines that related worksite inspections for the employer should be conducted, the following rules apply:
For General Industry worksites with three or fewer similar or related worksites nationwide—all worksites will be investigated.
For General Industry worksites with four or more similar or related worksites nationwide—the Director of the Directorate of Enforcement Programs (DEP) shall issue an SVEP nationwide inspection list with respect to the employer. Normally, where there are 10 or fewer similar or related worksites, all will be inspected. When there are more than 10 such establishments, random numbers will be assigned to the worksites on the list and the first 10 will be inspected. The Director of DEP has discretion to select particular establishments for inspection and to conduct further investigations as deemed necessary.
For nationwide inspections that involve PSM hazards, inspections will be limited to the willful or repeated citations or failure to abate notices that were issued and will not include worksites that were inspected during the previous two years.
For Construction Industry worksites that operate in different regions, where deemed necessary, the Director of DEP will issue an SVEP nationwide referral. The procedures outlined above with respect to General Industry worksites will apply.
Enhanced Settlement Provisions. OSHA will press SVEP participants to accept the following in settlement negotiations:
hiring an independent safety consultant to work through compliance issues;
applying settlement agreements companywide in accordance with OSHA’s 1991 Guidelines for Administration of Corporate-Wide Settlement Agreements;
imposing interim abatement controls where full abatement may take time;
imposing weekly or other enhanced reporting measures to report current or future jobsites for a certain time period;
requiring employers to report work-related injuries and illnesses on a quarterly basis and consent to inspections based on that data; and
requiring employers to report for a specified time period any serious injury or illness requiring medical attention, and to consent to inspections based on that data.
Increased Awareness of OSHA Enforcement.
The agency will pursue higher-profile enforcement, ensuring, for example, that company headquarters are notified of site-specific issues. OSHA will also issue press releases upon the issuance of citations.
Enforcement Under Section 11(b).
OSHA will strongly consider SVEP cases for federal court enforcement orders under Section 11(b) of the OSH Act.
Unanswered Questions and Implications
It is not clear how an employer will be removed from the program.
Will an employer be released from the SVEP if OSHA conducts a follow-up inspection of the originally cited worksite and does not find any similar level of violations? Or is there something more an employer would need to do, such as comply with some or all of the enhanced settlement provisions described above?
It is not clear whether OSHA will face challenges from employers for probable cause if the agency attempts to conduct inspections of other worksites based upon a citation satisfying one of the criteria set forth in the directive, even though the citation is not yet a final order of the OSHRC.
Under well-developed caselaw, OSHA is required to target its enforcement based upon neutral criteria, and the SVEP’s targeting system, currently based upon unadjudicated citations, potentially creates a number of constitutional and legal issues for the agency.
It is unclear how the contest rate of OSHA citations will be impacted if the agency closes the door to potential settlements of willful violations and other citations using the Section 17 “unclassified” approach.
On April 22, 2010, OSHA announced it would revise OSHA penalties as calculated in the agency's Field Operations Manual (FOM).
Dr. Michaels signed the memorandum titled "Administrative Enhancements to OSHA's Penalty Policies“ to OSHA Regional Administrators. In the memorandum, Dr. Michaels stated that OSHA's "penalties are too low to have an adequate deterrent effect."
The changes include:
Lengthening the time frame for considering an employer's history of serious, willful, repeat, or failure to abate violations from three to five years.
Lowering the reduction levels provided to employers based on size, e.g., no size reduction will be allowed for employers with more than 251 workers, according to the memo.
Any employer who has been cited for any high-gravity serious, willful, repeat, or failure to abate violation within the last five years will receive a 10% increase on the current citation (conversely, if no violations during that period, employer will receive a 10% reduction).
Minimum penalties for serious violations will be increased to $500.00.
Reduction of OSHA area directors' discretion for potential penalty reductions they can offer without obtaining approval from OSHA regional office.
The 10% reduction for employers participating in a strategic partnership will be eliminated.
Raising the way in which final penalties are calculated by applying final penalties serially, starting with the gravity-based penalty and deducting the history, good-faith, size, and quick-fix reductions in turn.
Raising gravity-based penalties from a range of $1,500 to $7,000 to a range of $3,000 to $7,000.
Dr. Michaels stated in the OSHA press release announcing these changes: "OSHA inspections and penalties must be large enough to discourage employers from cutting corners or underfunding safety programs to save a few dollars."
“OSHA has investigated several cases involving worker entry into grain storage bins where we have found that the employer was aware of the hazards and of OSHA’s standards, but failed to train or protect the workers entering the bin,” wrote OSHA Administrator David Michaels.
70% on farm
At least 3
more in Nov.
Source: Purdue University Agricultural Safety and Health Program
6.6 / year for 6 years 2004-2009
3.5 / year for 4 years 2000-2003
This exceeds the number of fatalities experienced from dust explosions during the 1960’s and 1970’s
OSHA states they will consider referring all future cases that involve grain engulfment fatalities to the Department of Justice for criminal prosecution.
OSHA had initiated special emphasis programs examining safety practices at grain handling facilities.
In the letter, OSHA reminded employees of the grain handling standard’s regulations and governing bin entry procedures.
OSHA recently developed a new Grain Bin Entry Fact Sheet for employers and workers.
OSHA Assistant Secretary David Michaels sent an Oct. 15 letter to all OSHA personnel outlining the progress being made in transforming the way the agency addresses workplace hazards and communicates with employers and workers. In the letter, Dr. Michaels states “One area in which we are applying this new strategy, because we believeemployers have not adequately protected workers, is entering grain storage bins.”
SD Wheat Growers Assoc. McLaughlin SD, $1.6 million (12/2009 fatality)
Tempel Grain, Haswell CO, $1.6 million (5/2009 fatality)
Cooperative Plus, Inc. Burlington, WI, $721,000, (2/2010 non-fatal engulfment)
NGFA and Purdue University produced Don’t Go With the Flow in 1998.
Program reviews hazards associated with flowing grain and most common types of entrapments at commercial facilities.
Provides information on effective procedures for rescuing partially and fully entrapped workers.
Training package includes 28 minute video, written lesson plan, pre- and post video test, warning poster and fact sheet.
National Grain and Feed Association